Legal experts, lawyers discuss judge's release of Hernandez warrants

Saturday

Jul 27, 2013 at 12:01 AMJul 27, 2013 at 3:09 PM

Media attorneys and civil liberties advocates praised an Attleboro judge’s rulings to unseal all the search and arrest warrant affidavits in the Aaron Hernandez murder investigation, but some legal experts warn it could hurt the former Patriots tight end’s chances of having a fair trial.

Brian Fraga

Media attorneys and civil liberties advocates praised an Attleboro judge’s rulings to unseal all the search and arrest warrant affidavits in the Aaron Hernandez murder investigation, but some legal experts warn it could hurt the former Patriots tight end’s chances of having a fair trial.

“The public’s right to know is an important right, but it isn’t absolute,” Douglas K. Sheff, the new president of the Massachusetts Bar Association, said this week, adding that unsealing documents needs to be balanced with preserving the integrity of a criminal investigation, protecting individuals’ privacy rights and ensuring a defendant’s right to a fair trial.

“I understand the press’s need for information and the ACLU (American Civil Liberties Union) position, but I think these documents tend to get impounded because you can’t put the toothpaste back in the tube after it’s already out,” said Sheff, a Boston attorney with a background in personal injury law.

On Wednesday, a consortium of media companies won a second battle to unseal court documents in the Hernandez case. Attleboro District Court Judge Daniel O’Shea approved a motion by the Patriot Ledger, the Taunton Daily Gazette and their parent company, GateHouse Media Inc., and other media outlets to release two arrest warrants and all search warrant materials that had been previously impounded by a court order.

On July 9, O’Shea also released 154 pages of documents related to eight search warrants — executed between June 17 and July 1 — into the investigation of Odin Lloyd’s murder. Lloyd, 27, of Dorchester, was found dead from five gunshot wounds June 17 in a North Attleborough industrial park. Hernandez, 23, charged with first-degree murder, is accused of orchestrating the shooting.

Prosecutors requested the warrant affidavits to be impounded, arguing in court documents that releasing those records to the public would compromise an ongoing investigation and increase the likelihood of witnesses being intimidated and evidence destroyed.

“There were people that were still being sought and there was evidence that was also being sought. It’s something the district attorney’s office routinely does in other investigations,” said Gregg Miliote, a spokesman for the Bristol County District Attorney’s Office.

In several other murder cases and a few drug-trafficking investigations, prosecutors in Bristol County have requested warrant affidavits to be impounded. Those requests are almost always approved by a judge, and getting those impoundment orders vacated requires the legal know-how to file motions and argue the points of law in court.

Lawyers for GateHouse Media argued this week in Attleboro District Court that state law says all warrant materials are public records. The Massachusetts Supreme Judicial Court also ruled all judicial records are presumptively available to the public in an August 2012 decision that upheld a lower court’s ruling to unseal a search warrant in a statutory rape case against William O’Connell, a prominent Quincy real estate developer.

Michael Grygiel of Greenberg Traurig LLP in Boston, representing the GateHouse Media newspapers, argued this week all search warrant materials in Massachusetts are public records after police have executed a search and filed the warrant return with the court.

“The law is clear that search warrants are public records that are generally available to the public,” said Matthew Segal, the legal director for the ACLU of Massachusetts.

“There are certainly occasions where the search warrants have sensitive information that, if disclosed, could impair some investigations,” Segal said. “But then again, the law says that what should happen in those cases is that the particular sensitive information be redacted and the remainder of the documents should be disclosed.

“What happens instead too often in Massachusetts is the wholesale impounding of these documents and that is contrary to the existing law,” Segal said.

Several excerpts in the court documents released Thursday afternoon were redacted to protect information deemed sensitive. Miliote said prosecutors in general only seek documents to be impounded at the beginning of an investigation.

“Once our investigations are complete, we don’t try to push to continue to have the information sealed unless it’s in the interest of an investigation,” Miliote said.

On Wednesday, prosecutors did not challenge GateHouse’s motion to unseal the documents. Hernandez’s defense team opposed the release of those records, arguing in court that the information would harm Hernandez’s constitutional right to a fair trial.

Defense lawyers are often just as concerned about information getting out that could harm their clients’ cases or public image.

“Part of it is the more the media puts out there, the greater the chance of the taint to the jury pool,” Fall River defense attorney Rene Brown said, adding that investigators sometimes include incorrect information and uncorroborated hearsay statements in their affidavits. Confidential informants are also sometimes named in the affidavits.

“It’s a case-by-case basis. It can help or hurt both sides,” Brown said. “Sometimes a defense lawyer wants it to be impounded because the information is garbage. But sometimes you want that stuff to be known and everybody else to know it.”

Sheff said judges should review warrant affidavits and decide what information is sensitive and needs to be redacted.

“The more experienced the judge and with a more thoughtful process, information can get out without doing harm to those other important considerations,” Sheff said. “You provide enough information to keep the public informed without going so far as to hurt anyone in the public or the witnesses and defendants in the case.”

Randy Gioia, the deputy chief counsel for the public defender division at the Committee for Public Counsel Services, said a defendant’s right to a fair trial and impartial jury overrides all other considerations.

“That to me is the important thing for a free society,” said Gioia, who added that releasing information compiled by law enforcement investigators unfairly presents only one side of the story.

“Aaron Hernandez, like many other people, sits in jail based on evidence that has never been questioned or tested in court,” Gioia said. “I think that’s a serious problem. That’s why we have to be careful about what information gets out there. It causes you to draw conclusions without knowing the full picture.”

Hernandez’s defense team, citing a judge’s gag order, has thus far declined to comment specifically on the allegations, other than to say they believe Hernandez will be exonerated and that the case against him is weak and circumstantial.

Segal said he believed there are circumstances in which documents should be impounded because they really contain information that could cause harm if released. But Segal said he has also seen “dubious” claims for sealing documents.

“It’s a real problem that leaves the prosecutors with control over information,” Segal said. “It’s particularly troublesome to see what is happening in an era when actual everyday people have fewer protections for their privacy then ever before.

“We basically live in an era where prosecutors have privacy,” Segal added, “but few others do.”